Lois A. Weithorn

Volume 71, Issue 3, 637-698

This Article examines concepts of treatment decisionmaking capacity relevant to medical aid in dying as it is currently authorized in the United States. In order to be eligible for medical aid in dying in one of the ten jurisdictions now allowing such assistance, patients must be capable of making an informed health care decision. Under many of the governing statutes, special attention is given to whether a patient is “suffering from,” for example, “a psychiatric or psychological disorder or depression” that is causing impaired judgment.

This Article analyzes the pertinent statutory provisions, examining the meaning of terms such as “capacity” and “impaired judgment” within the context of the law of informed consent. It further considers strategies for assessing treatment decisionmaking capacity, with particular attention to the relevant scientific evidence.

This Article emphasizes the importance of avoiding presumptions that persons with mental disorders or other psychological conditions are not competent to make their own treatment decisions. It proposes reliance on criterion-relevant evaluations of decisionmaking capacity that operationalize legal standards of competence, consistent with theory and research. It recommends against a higher threshold for determining capacity to decide about medical aid in dying as contrasted with other health care decisions relating to survival near the end of life. Finally, it encourages practitioners to adopt a broad formulation of palliative care in discharging their statutory obligation to inform patients of alternatives to medical aid in dying. Such formulations of palliative and comfort care should incorporate the range of appropriate psychosocial, psychotherapeutic, and psychopharmacological interventions. Any patient experiencing psychological distress should be fully informed about, and given timely access to, interventions that may provide relief from that suffering.